By Mass L. Usuf –

Recommendations

(1) Classification of emergency situations for stratified proclamation.

If the emergency levels can be classified the proclamation may be made accordingly depending on the type of emergency by the institution assigned under each classification.  Stratification will permit the proclamation to be made by the legislature or the Prime Minister on the advice of the legislature or, the President on the advice of the Prime Minister.  This would act as a layered structure in order to avoid concentration of power with regard to declaring a state of emergency.  For example, there is a difference between an apprehension of danger and imminent danger.  The latter may demand quick response while the earlier may not.

(2) Diluting the function of the advising authority

The Steering Committee proposal states that the President on the advice of the Prime Minister shall declare a state of emergency.  This is an improvement from the present position where only the President enjoys such authority (Section 2, PSO). 

It is necessary in this case to clearly define as to how the Prime Minister will be sourced to provide such advice to the President.  This has to be explicitly mentioned so that the Prime Minister’s advice will not be based on an arbitrary decision.

(3) Reason for the Proclamation

This has been included in the proposal and must be urged to be adopted viz. ‘The declaration of emergency shall state the basis on which such state of emergency was declared’.

(4) Institutionalise Judicial review 

All aspects relating to the declaration of a state of emergency has to be subjected to Judicial review.  The Proclamation or rules made under a state of emergency may continue pending judicial review.  Judicial review of the undermentioned are recommended:

a) The proclamation itself, of the state of emergency;

b) Any laws or regulations made under such proclamation and,

c) Any violation of fundamental rights.  This will be dealt with separately.

(4) (a) Judicial review of the proclamation

The present constitution precludes the court from questioning the proclamation made on the authority granted under the PSO.

Article 154 J (2) states that a ‘Proclamation under the Public Security Ordinance or the law for the time being relating to public security, shall be conclusive for all purposes and shall not be questioned in any Court……. ‘.

This Article has to be amended to permit the court to inquire into such Proclamation – the grounds for the making thereof, the existence of the grounds on which it has been made etc.

Moreover, Section 3 of PSO ousts the jurisdiction of the court to call in question ‘the fact of the existence or imminence, during that period, of a state of public emergency’.  These dictatorial clauses must be amended paving the way for judicial review of the proclamation.

(4) (b) Judicial review of emergency laws and regulations

The PSO expressly excludes judicial oversight of acts done under the provision of any emergency regulation or any other circumstances stated therein vide. Section 8.  This is considered too rigid and an incentive to abuse.  While actions under emergency regulations are acknowledged to be under exceptional situations that does not justify total immunity as matters relating to the rights of subjects should be given primacy.

Therefore, Section 8 of the PSO has to be amended permitting judicial review of executive action including making of regulations, amendment and revocation. This has to be enshrined as a constitutional remedy.

(5) Impact on the Provinces

It has to be noted at the outset that the proposal on Public Security does not clearly specify or identify the Articles that will be amended, repealed or replaced and, if replaced, replaced with what, in the current constitution.  There is considerable vagueness.  The observations below have been made with this constraint.

A new Article 155(3A) was incorporated into the 1978 constitution via the thirteenth amendment.  This Article provides for making of emergency regulations affecting the Ninth Schedule and also other statutes of the Province.  It reads:

“Nothing in the preceding provisions of this Constitution shall be deemed to prohibit the making of emergency regulations, under the Public Security Ordinance or the law for the time being in force relating to public security, with respect to any matter set out in the Ninth Schedule or having the effect of over-riding amending or suspending the operation of a statute made by a Provincial Council.”

This Article ensures the concentration of power with the central government in the event of an emergency situation.  Retaining such power strengthens the argument for an indivisible unitary state. 

The Steering Committee proposal on Public Security mentions that ‘the Governor of a Province, on the advice of the Chief Minister may advise the Prime Minister’ of an emergency situation.  Since the subject is that of emergency, it is recommended that the Centre is also vested with prerogative authority over and above this procedure.  Such may be invoked with necessary checks and balances in specified special circumstances.

A refinement in this proposal is that the Proclamation shall be subjected to both Parliamentary approval and judicial review.  Compare Article 154 L (6) which has an exclusion clause keeping the courts away.

The proposal relating to Public Security states, XXX (b) “Where it is necessary for the effectual exercise of the powers under sub paragraph (a) of this paragraph, dissolve the Provincial Council.”

It does mention who may dissolve the Provincial Council.  In the 1978 constitution, Article 154B. (8) (c) reads: “The Governor may dissolve the Provincial Council.”

(6) Fundamental Rights

The two potential dangers of a state of emergency is (a) abuse of authority and (b) restriction of fundamental rights.

Article 155 (2) of the constitution provides:

“The power to make emergency regulations under the Public Security Ordinance or the law for the time being in force relating to public security shall include the power to make regulations having the legal effect of over-riding, amending or suspending the operation of the provisions of any law, except the provisions of the Constitution.”

The above Article clearly permits any law-making excepting that which affects the provisions of the constitution.  Prima facie, it may look to be an excellent safeguard of fundamental rights.  However, the question is that within the constitution, there are provision which permit the restriction of fundamental rights (See Article 15 – Restrictions on fundamental rights).  These cannot be contested and these restrictions are imposed in the name of a variety of circumstances mentioned therein.

The exercise and operation of the fundamental rights declared and recognized by the Articles shall be subject only to such restrictions as may be prescribed by law, in the interests of:

• “… national security. Article 15 (1);
• “… racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence Article 15 (2);
• “… racial and religious harmony. Article 15 (3)
• “… racial and religious harmony or national economy. 15 (4)
• “… national economy Articles 15 (5) and (6),
• “… national security, public order and the protection of public health or morality, or…. Article 15 (7)
• “… the proper discharge of their duties and the maintenance of discipline among them. Article 15 (8)

Restriction And Denial

Not many in the executive branch including the law enforcement authorities viz. the Police are aware of the fine distinction between the restriction of fundamental rights and the denial of fundamental rights.  Upon the proclamation of emergency, these arms of the government apparently transform themselves into Hecatoncheires (hundred – handed creatures in Greek mythology) so they become powerful than the average person.

For instance, take the fundamental right that “Every citizen is entitled to the freedom of speech and expression including publication;” (Article 14 (1) (a)).  This can be restricted, in the interest of subjects stated in Article 15 (2) (see above).

The question is, will a speech or expression made referring to the inaction of the Police in arresting perpetrators of crimes be a violation of this restriction?  Surely not.  However, by virtue of the fact that freedom of speech and expression has been restricted everything that is spoken or expressed apparently falls under this restriction.  Then it becomes not a restriction but a denial of a fundamental right.

Take another instance, although Article 155 (2) permits the making of emergency regulations ‘having the legal effect of over-riding, amending or suspending the operation of the provisions of any law’, this should not be taken to side step the basic provisions of the Procedural laws both criminal and civil.  Even in the case of any other laws, the specific areas that will be made inoperative should be clearly stated in the emergency regulations.  If not, these lead to avenues that open up for abuse and the consequent denial of a person’s rights.

It is recommended that:

1. the above observations be given the consideration they deserve;
2. any restriction of fundamental rights under emergency rules to be subjected to the doctrines of necessity, proportionality and in keeping with international norms; 
3. a very clear and easy process whereby judicial review of the restriction on fundamental rights can be contested in a court of law by the citizen; 
4. a generous list of non-derogable rights in keeping with international human rights standards be developed;
5. any derogable rights be subjected to strict scrutiny, be transparent, clearly specified and free from ambiguity.

It is understood that the South African constitution go to the extent of facilitating domestic justiciability of international human rights within the emergency regime.